The Federal Trade Commission is opposing antitrust reform legislation in Congress that aims to loosen restrictions on physicians and other providers forming managed-care networks.
FTC Chairman Robert Pitofsky urged the House Judiciary Committee to allow the commission to develop more flexible guidelines that could remove existing barriers to physician networks.
Under current law and enforcement policies, network providers must be financially integrated in order to avoid price-fixing allegations. But the promised guidelines, which could be released as soon as May, would recognize other forms of integration that would help networks avoid price-fixing charges, Pitofsky said.
Pitofsky's comments came at a hearing on the Antitrust Health Care Advancement Act, sponsored by Judiciary Committee Chairman Henry Hyde (R-Ill.).
Pitofsky told members of the committee that allowing the FTC and the Justice Department to develop and constantly adjust antitrust guidelines is a more flexible approach.
The fast-changing healthcare marketplace would quickly outpace any legislative relief Congress could pass, and Congress could not adjust its law as quickly as the FTC can change its guidelines, Pitofsky said.
But Hyde countered that legislation could provide "predictability, certitude" better than "amorphous guidelines" for providers seeking to form networks.
Hyde's legislation would subject the conduct of physician networks, in negotiations with payers, to more generous antitrust scrutiny under so-called "rule-of-reason" analysis.
Physicians argue that current interpretations of antitrust law bar them from discussing their fees as a "per se violation" of price-fixing prohibitions, without considering whether the network they seek to form in fact will increase marketplace competition.
The only networks that now receive "rule-of-reason" analysis are those in which there is financial integration or shared risk among providers, or if the network introduces a new product to the marketplace.